Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 798 (ALL)

Dev Prakash Tripathi v. State of U. P.

2024-03-13

J.J.MUNIR

body2024
JUDGMENT : J.J. Munir, J. 1. This writ petition is directed against the order dated 30.6.2014 passed by the District Basic Education Officer, Siddharth Nagar (for short, 'the BSA'), terminating the services/contract of service of the petitioner as a Shiksha Mitra with immediate effect as also the order of the District Magistrate, Siddharth Nagar dated 20.6.2014, granting approval to the proposal for termination of the petitioner's services/contract of service. 2. The petitioner was appointed a Shiskha Mitra at the Primary Vidyalaya, Rasiyawal Khurd, Development Block Lotan, District Siddharth Nagar (for short, 'the institution') in accordance with law and after following the procedure for selection and appointment of a Shiksha Mitra, provided by Government Orders issued on the subject from time to time. The petitioner says that he was discharging his duties as a Shiksha Mitra faithfully and to the satisfaction of his superiors since the year 2001. 3. In substance, the case of the petitioner is that the allegations against him are the outcome of machinations of the Village Pradhan at the relevant time, one Brahma Yadav and another Veenu Pandey, the daughter-in-law of a retired teacher, through whom a sum of Rs. 59,500/- were drawn by the Headmistress of the institution, the Pradhan and Veenu Pandey, illegally depriving the State exchequer. This offence was reported to the Police at the instance of the petitioner, leading to animosity and the immediate cause for the Pradhan to lay false reports against the petitioner through the Gram Shiksha Samiti about non-provision of the mid-day meal to children in the institution. Based on the complaints against the petitioner, he was issued a notice by the BSA on 18.2.2014, which the petitioner answered by his reply dated 26.2.2014. It was mentioned that the food grains are not supplied by the local fair price shop dealer, who sends foodgrains to the Pradhan and these are not provided to the institution for cooking the mid-day meal. The BSA did not pass any orders after receiving the petitioner's reply dated 26.2.2014. The petitioner submitted a complaint in the matter dated 4.6.2013 to the District Magistrate, apprising him of illegal actions of the Pradhan. A complaint about victimization by the Pradhan on false charges was also made to the Commissioner of the Basti Division by the petitioner. The BSA did not pass any orders after receiving the petitioner's reply dated 26.2.2014. The petitioner submitted a complaint in the matter dated 4.6.2013 to the District Magistrate, apprising him of illegal actions of the Pradhan. A complaint about victimization by the Pradhan on false charges was also made to the Commissioner of the Basti Division by the petitioner. There is an assertion in paragraph No. 12 of the writ petition that the officiating Headmistress of the institution apprised the District Magistrate on 26.4.2013 that food grains are not being provided for cooking the mid-day meal by the fair price shop dealer. A copy of the said complaint by the officiating Headmaster of the institution is on record. 4. The petitioner's case is that the Gram Shiksha Samiti under the stewardship of the Village Pradhan, without giving any notice to the petitioner, forwarded a resolution dated 31.3.2014 to terminate the petitioner's contract of service. It is stated in paragraph No. 13 of the writ petition that the BSA, while passing the impugned order dated 30.6.2014, terminating the petitioner's service, has remarked that he was issued with a notice dated 29.4.2014, providing him opportunity to have his say, which he did not satisfactorily reply. It is averred in paragraph No. 13 of the writ petition that no such notice was ever served by the BSA. According to the petitioner, he was served with a notice dated 21.5.2014, asking him to show-cause within three days in regard to the allegations carried in the notice. 5. The petitioner submitted his reply on 22.5.2014, denying the allegations in the notice. It was said by the petitioner in his reply that on 22.5.2014 at 11 a.m., the Block Education Officer came over to the institution and took away the attendance register, which he handed over to the Gram Pradhan alongwith other registers. The petitioner was asked to sign the attendance register at the Gram Pradhan's house everyday. The petitioner has asserted that the BSA has not passed any orders taking into consideration the petitioner's reply. Rather, he has forwarded the proposal to terminate the petitioner's services for consent of the District Magistrate and against renewing his service contract for the next session, without reference to his reply or defence. 6. The petitioner has asserted that the BSA has not passed any orders taking into consideration the petitioner's reply. Rather, he has forwarded the proposal to terminate the petitioner's services for consent of the District Magistrate and against renewing his service contract for the next session, without reference to his reply or defence. 6. The District Magistrate has granted approval regarding termination of the petitioner's services/contract of service on the basis of the resolution of the Gram Shiksha Samiti forwarded by the BSA. Consequent upon the said approval, the BSA, falling back on the provisions of the Government Order dated 12.11.2008, has terminated the petitioner's services by the impugned order dated 30.6.2014. It is averred in paragraph No. 19 of the writ petition that the order dated 30.6.2014 is bad in law because the BSA has recorded an incorrect finding there that a notice dated 29.4.2014 was served upon the petitioner, besides another dated 21.5.2014, to both of which the petitioner did not reply. The finding is incorrect because the notice dated 29.4.2014 was never served, whereas the notice dated 21.5.2014 was answered on 22.5.2014 and duly received in the BSA's office. The further case pleaded by the petitioner is that the District Magistrate should have given opportunity to the petitioner before he granted approval to act in terms of the Gram Shiksha Samiti's resolution, said to have been passed on 31.3.2014. It is the further case of the petitioner that the District Magistrate has committed a patent illegality in passing the impugned order dated 30.6.2014, without considering the petitioner's reply, which in any case has been passed without affording the petitioner opportunity of hearing. 7. A counter-affidavit has been filed on behalf of the BSA sworn by Block Education Officer. It is averred in paragraph Nos. 4, 5 and 6 of the counter-affidavit that the work and conduct of the petitioner was not satisfactory, and, therefore, the Gram Shiksha Samiti did not recommend renewal of the petitioner's contract for the session 2008-09. The Gram Shiksha Samiti has sent a proposal for a new appointment. Copies of the resolution are annexed as Annexures CA-1 and 2. In paragraph No. 10 of the counter-affidavit, paragraph Nos. 19, 20, 21, 22, 23 and 24 have been answered in the following terms: “10. The Gram Shiksha Samiti has sent a proposal for a new appointment. Copies of the resolution are annexed as Annexures CA-1 and 2. In paragraph No. 10 of the counter-affidavit, paragraph Nos. 19, 20, 21, 22, 23 and 24 have been answered in the following terms: “10. That the contents of Para No. 19, 20, 21, 22, 23 and 24 of the writ petition are incorrect as stated therein hence denied in reply it is submitted that the notice was served upon the petitioner, but he failed to give satisfactory reply, reply of petitioner was not satisfactory, therefore the District Basic Education Officer terminated the service of petitioner. Gram Shiksha Samiti has sent a proposal for removal of the petitioner, because his work and conduct was not satisfactory, the Gram Shiksha Samiti has submitted all evidence before the District Magistrate who has accepted the proposal of removal/termination of petitioner. The impugned order is just, proper and sustainable in the eye of law. The petitioner had made hindrance/obstruction in Mid-day-mill, due to his conduct no person are interested to take charge of Head Master in the institution.” 8. This Court by an order dated 30.8.2014 had required learned Counsel for the BSA, Mr. Ashok Kumar Singh, to seek instructions particularly in regard to allegations in paragraph No. 19 of the writ petition. Notice on behalf of respondent No. 4 was accepted by Mr. D.D. Chauhan, learned Counsel, but there has been no representation on behalf of the said respondent or a return. Notice was issued to respondent No. 5 by RP AD on 3.9.2014 and steps were taken on 19.11.2014. The office report shows that neither acknowledgment nor the undelivered cover had been received back. The service upon respondent No. 5 is, therefore, held sufficient. 9. Heard Mr. N.L. Pandey, learned Counsel for the petitioner and Mr. Akhilesh Kumar Tripathi, learned Standing Counsel appearing on behalf of respondent Nos. 1, 2 and 3. 10. Upon hearing learned Counsel for the parties, this Court finds that the impugned order dated 30.6.2014 cannot be sustained for more than one reason. These are: firstly, that it is vague and imputes to the petitioner unsatisfactory service in uncertain terms without any material particulars, capable of being answered or asserted. 1, 2 and 3. 10. Upon hearing learned Counsel for the parties, this Court finds that the impugned order dated 30.6.2014 cannot be sustained for more than one reason. These are: firstly, that it is vague and imputes to the petitioner unsatisfactory service in uncertain terms without any material particulars, capable of being answered or asserted. Secondly, it says that the petitioner was asked to submit a reply to the notice dated 29.4.2014, which he did not do, but in the face of the petitioner's denial that the said notice was not served, there is nothing said in the impugned order or the return filed, how that notice was served upon the petitioner. Thirdly, the impugned order says that a repeat notice was issued to the petitioner on 21.5.2014 to show-cause in respect of whatever the case against him is, but he did not submit a satisfactory reply or explanation. It is not mentioned by even as much as a single sentence, what the allegation was and how the petitioner's explanation was not satisfactory. Ex facie, it shows non-consideration of the petitioner's explanation to the notice dated 21.5.2014. Fourthly, the only definitive allegation, of whatever worth, is a complaint attributed to Veenu Pandey dated 8.5.2014 that the petitioner has made of with the Shiksha Mitra Attendance Register and the Students Attendance Register, which he keeps with himself and himself remains untraceable. The petitioner has said that the Attendance Register relating to the Shiksha Mitra was taken away by the Block Education Officer and kept with the Pradhan with instructions to the petitioner to sign the Attendance Register there. The impugned order does not record any finding about the truth of the matter in this regard. It just mentions the allegation and rests content with it. Fifthly, the impugned order says that in view of a number of resolutions passed by the Gram Shiksha Samiti mentioned in the opening of the order, the BSA, after obtaining the District Magistrate's approval on 20.6.2014, had decided to terminate his contract of service on grounds of his work and conduct being unsatisfactory, besides his non-cooperation and obstructive ways. 11. As already remarked, there is nothing said in the impugned order, even vaguely, apart from one fact as to how the petitioner's work and conduct were unsatisfactory or obstructive of work in the institution. 11. As already remarked, there is nothing said in the impugned order, even vaguely, apart from one fact as to how the petitioner's work and conduct were unsatisfactory or obstructive of work in the institution. Before allegations of this kind can be sustained, they have to be definitive in the sense that particulars and facts have to be set out as to how the petitioner's work is unsatisfactory, citing instances of it, and how his conduct is blameworthy. What the impugned order does is merely to cite labels without the content. A mere incantation of the words that the work and conduct of a person is unsatisfactory, would not imbue them with life or efficacy, unless the particular acts, facts and instances of poor work and bad conduct are mentioned. Then an order that proceeds on the basis of some definitive allegation has to record some kind of a finding, which must proceed on some material to infer that the allegations hold some truth to them. 12. Across the entire length and breadth of the impugned order, there is just one allegation about making off with the Shiksha Mitra Attendance Register and the Students Attendance Register, about which the only material cited is a complaint by Veenu Pandey. Ignoring the fact that there are allegations of animosity against Veenu Pandey, there is no finding with reference to any objective material on record that in fact the petitioner made off with the Shiksha Mitra Attendance Register or that of the students. To the contrary, there are allegations about some representations made by the petitioner that it was the BSA, who had kept the Attendance Registers at the Pradhan's home. There is no categorical finding about the petitioner's guilt regarding the 'attendance register's issue'. To put it shortly, the impugned order is utterly bad for the vagueness of it. The District Magistrate's order dated 20.6.2014, granting approval to termination of the petitioner's contract service, has not been placed on record in the return filed on behalf of respondent Nos. 1, 2 and 3. The petitioner has asserted that it was not made available to him. 13. The District Magistrate's order dated 20.6.2014, granting approval to termination of the petitioner's contract service, has not been placed on record in the return filed on behalf of respondent Nos. 1, 2 and 3. The petitioner has asserted that it was not made available to him. 13. This Court is inclined to believe the petitioner because the fashion in which the District Magistrates generally function in the State, it is difficult for an ordinary or a humble man, like a Shiksha Mitra, to secure a copy of an order of this kind passed by the District Magistrate on the administrative files. It was the duty of the respondents to have placed the District Magistrate's order on record. In the absence of the copy of the District Magistrate's order being placed on record, this Court is inclined to believe that the District Magistrate has granted an approval without application of mind to any of the glaring infirmities that we have found hereinabove. The District Magistrate's order is, therefore, liable to be ignored. 14. To add to all this, this Court notices another feature, vitiating the order impugned, which goes utterly unexplained. In paragraph No. 4 of the counter-affidavit, the respondents have taken a stand that the petitioner's work and conduct was not found satisfactory and a recommendation for renewal of his contract had not been made since the year 2006-07 and also that the petitioner had brought pressure on the department without basis to pay his honorarium. The said stand is evident from a perusal of paragraph No. 4, which says that a proposal for a new appointment has been sent by the Gram Shiksha Samiti on 14.2.2009. A perusal of the report of the Gram Shiksha Samiti dated 15/18.2.2010, annexed as Annexure CA-1 to the counter-affidavit, also shows respondent Nos. 1, 2 and 3 saying that the petitioner's contract of service has not been renewed after the year 2006-07, and a proposal for appointment made in favour of somebody else. The said stand of the respondents is utterly irreconcilable with the impugned order dated 30.6.2014, where it is said in the opening part of the order that dissatisfied with the petitioner's conduct, the Gram Shiksha Samiti had passed resolutions dated 25.7.2013, 14.8.2013, 30.9.2013, 2.10.2013, 3.11.2013, 9.12.2013, 25.1.2014 and 26.2.2014, cautioning the petitioner to bring about improvement in his work and conduct. It is further said in the impugned order that finding no improvement in the petitioner's work and conduct, the Gram Shiksha Samiti had passed a resolution dated 31.3.2014, proposing to terminate the petitioner's contract of service, on the basis of which the BSA had issued a notice dated 29.4.2014 to the petitioner. If the petitioner's services/contract of service had not been renewed after the year 2006-07 as per stand of the respondents in the counter-affidavit and the proposal of the Gram Shiksha Samiti dated 15/18.2.2010, annexed as Annexure CA-1 to the counter-affidavit, the occasion could not have arisen for the Gram Shiksha Samiti to pass the multiple resolutions, referred to in the impugned order, in the years 2013 and 2014, cautioning the petitioner and then resolving to propose the termination of his contract of service on 31.3.2014. 15. The aforesaid facts show that both the BSA and the District Magistrate have proceeded to terminate the petitioner's services/contract of service, firstly on vague allegations of unsatisfactory work and conduct, which are utterly unascertainable. It further shows that both the BSA and the District Magistrate have acted to dispense with the petitioner's services and brought an end to his contract in some surreptitious manner, without themselves being sure when the petitioner's services or contract of service was determined. No act of the State or its officials, can be so uncertain and so full of contradictions. The BSA, who passed the impugned order and the District Magistrate, who granted approval to it on 20.6.2014, shall stand duly cautioned to be careful in matters dealing with rights of citizens in whatever form these may fall for consideration. They will bear in mind that business of the State must not just claim a presumption about its regularity; it should exhibit regularity and predictability. For all the reasons indicated above, this petition deserves to succeed. 16. In the result, this petition succeeds and is allowed. The impugned order dated 30.6.2014 passed by the BSA and the approval to it, in whatever form accorded by the District Magistrate, Siddharth Nagar are hereby quashed. A mandamus is issued to the BSA and the District Magistrate, Siddharth Nagar, to pass fresh orders, regarding the petitioner's claim to continue as a Shiksha Mitra, within four weeks of the receipt of a copy of this order after, examining the records carefully and affording the petitioner due opportunity of being heard. A mandamus is issued to the BSA and the District Magistrate, Siddharth Nagar, to pass fresh orders, regarding the petitioner's claim to continue as a Shiksha Mitra, within four weeks of the receipt of a copy of this order after, examining the records carefully and affording the petitioner due opportunity of being heard. This order will be communicated to the BSA concerned, who passed the order impugned dated 30.6.2014, through the Principal Secretary, Basic Education, Government of U.P., Lucknow and the District Magistrate concerned, who granted approval to that order, through the Secretary (Personnel), Government of U.P., Lucknow, within a week of receipt of a copy of this judgment. 17. There shall be no order as to costs. 18. Let a copy of this judgment be forwarded for the purpose of communication to the Principal Secretary, Basic Education, Government of U.P., Lucknow and the Secretary (Personnel), Government of U.P., Lucknow by the Registrar (Compliance).